Union Railways (North) Ltd means little or nothing to the average rail traveller. Its Implementation Director, David Bennett displayed an impressive grasp of the detailed engineering and the elaborate legal construction that exists to complete the Channel Tunnel Rail Link. He gave a detailed lecture about the project to construct the line, which will make a difference to every Londoner's life. He was rightly proud of having delivered the first section on time and on budget. He attributed this to being a Luddite - avoiding all innovation and risk. The rail technology is licensed in from the French. Everything else is tried tested and proven. The project management tools seemed to have come from Bechtel and David himself had been tested on several projects in Hong Kong.
This was a lecture organised by The IET, the new name of the Engineering body of which I have been a member since 1988. Its now much easier for anyone interested in engineering to join and participate in events so perhaps we can expect to see more members of the legal and patent attorney community in future. This lecture may have been anathema to the concept of innovation but the profession as a whole is at the forefront of innovation. On 19 October 2006 there is an evening presentation from the EPO.
Nominet like to keep in touch with the variety of their membership and hold these excellent days to bring groups together to highlight their services and their position (neutral) within the UK web community. Maintaining that status is tough when the morality of the domain name business is still somewhat mobile.
They highlighted their newer services like the PRSS Public Registry Search Service, which allows the database of domain name registrations to be searched in more sophisticated ways. This is a tool necessary if you are preparing an abuse case based on a pattern of activity. We also heard about the successes of the mediation service, but it can only work if the complainant responds to the complaint. Since the chances of him winning when the complaint is poorly prepared, silence may well be golden. Sadly Nominet were not advocating that members dealing with complaints should get professional help in preparing them. Advocating accessibility is apparently the neutral position.
Another news item for me was the new approach to domains registered in the name of dissolved companies. These used to be auctioned off by the Treasury Solicitor as bona vacantia. Legal sense has prevailed and they are now no longer considered as property once the contract that created them has gone. If you are using a domain that is registered in the name of a dissolved company you can get ownership corrected for a small fee. If you want it as a third party you simply have to wait for it to be cancelled. Nevertheless it doesn't look as if Nominet has told the Treasury Solicitor as it is still running the auction.
The event was in presented by Nominet staff including a professional communicator, Gareth Cook. It is a real pleasure to have professional presentation to keep an event moving along and I'm not just saying that because I won a bag of chocolates in the after lunch quiz. Not only did the post lunch audience interlude get us back into alert mode it also helped bond the group and reinforce some of the issues covered in the morning. Give the man a bonus!
The Patent Office provided the facilities but no presence for what turned out to be a general discussion of IPR issues between a visiting delegation from the Chinese Ministry of Commerce together with several Chinese IP Academics from Peking and Renmin Universities. The meeting was hosted by Dr Paul Leonard of the IP Institute - the nearest thing we have in the UK to a national IP research facility. It is not government backed and is merely a virtual institute.
The cultural and linguistic gulfs between us were wide. Associate Professor Li Chen from Renmin highlighted the state backed activities in China devoted to the establishment, enforcement and awareness of strong IP protection in China. We had not the heart to admit that this was far more sophisticated than anything on offer in the UK. Language as might be anticipate proved a real barrier to effective debate. The discussion in English suffered because legal terms are not easily found in the dictionaries. Is it a misuse of IP rights to infringe them or to abuse them as a patent troll or a dominant copyright owner might? The exchange could have been more valuable if I had known some Chinese but to learn enough language skills to cope with concepts I have difficulty in expressing in my own tongue is a daunting task. Our friends from China must be complimented on their endeavours to learn about the English system, but I doubt that it is worth copying. In due course can we come and see you and learn how to promote innovation through IP please?
Is trading in domain names as property rights a legitimate entrepreneurial business or a threat to society as we know it? Brand owners and celebrities who have battled to recover domain names from third parties will never see those who register domain names for gain as anything other than cybersquatters. But there is an industry, and the legal profession is one of its main beneficiaries, in the control and policing of domain names. This is what we learned as we gathered in Lovell's air conditioned Auditorium on one of the hottest afternoons this summer.
Those who do business in domains as property prefer now to be called Domainers. The registrars who profit from volume registrations have always encouraged them but unless they themselves become Domainers they too are their victims as a result of exploitation of . Now that the pay per click advertising industry is paying out billions to Domainers through programs like Google's AdSense (tactfully not mentioned as the source of the iniquity), the Internet seems doomed to be weighed down with advertising only sites. Nick Wood of Com Laude - ethical registrar to the IP industry pointed out how the .com 5 day Add Grace period that allows domain tasting creating ephemeral advertising websites that disappear even before the registration fees have been paid had become a favourite ploy of the domainers, but the IP world will leave that to the Internet regulators to address.
Presentations from Edward Phillips of Nominet Erik Wilbers of WIPO and Zbynel Loebl of the Czech Arbitration Court highlighted some of the more innovative ploys of the Domainers and the response of the growing legal community that man the arbitration panels that referee the domain name spaces of .uk, .com and .eu respectively. Erik explained that panellists were divided on whether criticism and fan sites had legitimate interests in registering domains. Zybnel drew our attention to the summaries of the decisions that they are publishing on their website in English which are indeed brilliant and concise and provide an excellent example of how pan European disputes should be dealt with. See the example - the summary is at the end rather than the more usual place for a headnote - here which explains that & in a trademark cannot be ignored at the discretion of the applicant but must be rewritten as "and" - a Domainer loss but full marks for creativity.
David Taylor of Lovells in Paris drew our attention to the fact that the domain blowjob.eu based on the Benelux trademark BLO&WJOB was on hold and that his competitor, Computer Patent Annuities had messed up their own attempt to register cpa.eu.
Stretching the Boundaries was attended by an impressive collection of solicitors seeking congenial CPD points. The presentations focused on the softer aspects. IP rights new for this year - The Artist's Resale Right collected by DACS and The London Olympic Association Right (LOAR) were well covered.
Gillian Davies also gave a brisk review of the fascinating boundaries between idea and expression in copyright law touching on some areas that cause some of us to worry about the power of IP to inhibit free speech. The idea that the Holy Blood Holy Grail case could ever have been brought let alone appealed makes one doubt that there is a public domain any more. Andrew Norris of Hogarth acted for the claimants in this case but his contributions were limited to infringing the rights relating to a 2012 event that I have no intention of taking advantage of.
To complete the seminar with a hard edge, Amanda Michaels interviewed celebrity inventor, Mandy Haberman. Why Mandy who is a successful business woman and entrepreneur prefers to present herself as an individual inventor is a mystery to me. She claimed that her initial strategy of taking the Anyway Up cup around the established manufacturers in the expectation of licensing it was because "the books said so". She still appears to believe the books in advocating that the government should be finding some way of standing behind inventors who seek to follow this doomed strategy. Nevertheless her example of how they persuaded Tesco to buy is a marketing classic and emphasises that knowing the market and breaking into it are more important than the idea. Why should a third party licensee take that risk on behalf of the inventor and pay out a significant proportion of the profits if it works? In describing her experiences of using the patent system Mandy explained how her now considerable knowledge of the European baby product market as well as the cruelty and sloth of the European Patent Office opposition system had shaped her current strategy.
The champagne and strawberries were excellent too. Thanks to sponsor, Westlaw for a nice free notebook - shame Filemot cannot afford their products but we have been providing them free advertising by being seen with their characteristic notebooks for some time.
3Cs is a network that is designed to support innovation. It brings together entrepreneurs and consultants of all sorts and hopefully a few angel investors. Recently they have started charging attendees so attendance has dropped but the purpose is to grow a prize fund for those who pitch to the meetings. At this over long meeting in the British Library we heard from two London South Bank University enterprises' Coolstreme (still at the pre-prototype stage) and Biox, Peter Wake of Teamseer - a software business with a neat solution for every manager that replaces the dreaded wall planner and an exhibition promoter. The idea is to get feedback on the issues that face your business but you have to tolerate the Chair's tendency to say lets take that offline to terminate all discussion and keep to the time schedule.
Paul Maier - President of the Boards of Appeal at OHIM came to London to highlight the value of the Community Registered Design (CRD) and to tell us something about the invalidity decisions that had been made so far. Now a CRD as I explain on my Designs page is an valuable tool for innovators but a deposit system does mean that there are lots of invalid registrations of unoriginal designs or ones that everyone knows were not first disclosed less than 12 months before the application date. CRD are being used to protect trademarks too. Everyone will of course appreciate that the top image creates a different overall impression on the informed user than the bottom one which is a much older Community Trademark. Nevertheless Paul did not think that there was any possibility that trolls thwarted by the European patent litigation system might consider exploiting the monopoly rights freely on offer from OHIM. Of course they would not get away with it in Sweden where Paul showed (with some disapproval) that they have high standards for originality and had refused in 2002 to register Mercede's new C class design because it was too similar to the S class
More helpfully Paul discussed the approach being taken to Invalidity decisions but was concerned that since examination was restricted to the facts, evidence and arguments provided by the parties, it was difficult to get to the correct answer in all cases. The Board had to put itself in the position of the informed user and inevitably had recourse to the Internet to see what the informed user might see but could not share that research with the parties. Without expert witnesses and cross-examination, these decisions are doubtful but if the trend of the Special Effects case is followed a failed invalidity action at OHIM might give rise to an estoppel, so best to win or decide validity in a Community Design Court. Check out some of those decisions here
Thank you to Terry McMahon for an entertaining and honest discussion about the phenomenon of patent trolls in the USA and the theatrical conduct of patent litigation with a jury (which is how its done in the US).
The presentation was held at the London offices of McDermott Will & Emery, an international law firm that is one of the few that runs a patent prosecution practice, but not one likely to be within the reach of even the most well-funded entrepreneurial companies. A patent troll was defined by Terry as an entity that carried out no research and had no manufacturing capability but had acquired non-commercialized patents from third parties for the sole purpose of enforcement. The evil is alleged to lie in a claimant that has made no contribution to innovation feeding off those who have invested in bringing technology to the market, without any assistance from the inventors. The real evil lies in the existence of patents for obvious inventions. The issue is whether a patentee has an obligation to innovate or can collect from those that do. In deference to the members of the audience who were from the firm's prospective University client, an exception was made by Terry for University Professors who invent. The key surely must be whether the alleged infringers owe their technology directly or indirectly to the patented invention. Of course there are situations where true inventions arise independently but frequently several people have similar ideas because they are obvious. The anti-software patent campaigners see that clearly the rest of those "following the money" are a little blinkered about it.
The problem exists far less in the UK because validity is more harshly and quickly judged and an unsuccessful claimant is going to be paying the other side's costs. This means a UK troll would need even more investment capital, but there have been some who investigated the issue. There is also the problem of the compulsory licensing provisions that could mean that a true troll would not have the option of an injunction - even without the need to distort the law as the US Ebay v MercExchange opinion has done.
Thanks are due to MWE for putting on this excellent presentation and I trust that Terry and his wife had an excellent following day following the tennis.
This meeting was organised by Inventor's group Ideas 21 to discuss the latest consultation. Comptroller, Ron Marchant took some emotional flack from the librarians and others who felt they rather than the public at large should have been consulted first. Just as well he and the other speakers had enjoyed a convivial dinner with the newly renamed Chartered Institute of Patent Attorneys. I may already be confused as to how I can or cannot describe myself as a solicitor but now I'm not a patent agent but a patent attorney - identity crisis warning. But I digress this meeting showcased the excellent work of the Foundation for Finnish Inventions. Several private inventors in the audience were already making plans to move to Finland to take advantage before executive director, Juha Jutila had explained how Finnish entrepreneurs were supported. A high proportion of applicants receive some support for their project in the form of advice, seed funding and help with IP protection, prototype building and market research.
Once upon a time the NRDC did something like this on a very selective basis mainly focusing on its university clients but Nesta is the nearest it gets now and as to cash and support for patenting, say bye bye unless you are in Wales. For inventors the gleam in the eye is always generated by the prospect of a patent and a licensing deal with the licensee taking all the risk of completing the design, development, manufacture and marketing of the product. They carp at the cost of patent advice and especially the prospect of any enforcement and feel aggrieved if you question whether their naked idea really deserves the reward they expect. Seldom are these inventors prepared to become entrepreneurs and found a business, generate employment and really drive the economic growth of the community. If their ideas are good they need to be encouraged to get out there and do it, which is exactly what Mandy Haberman did. Even so Mandy, who was there, spoke up to encourage the Patent Office to contrive some way of standing behind a licence negotiating inventor to persuade the risk taker not to abuse the confidences they were receiving.
The Patent Office and all those multitudes of organisations that help innovators have to tread a careful line. They need to support the most productive while pacifying the most vociferous who could deter the less confident from attempting the exercise because of their complaints and endless demands for change.
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04 March 2007